The Chief Fire Officer v Elizabeth Felix-Phillip and Others
| Jurisdiction | Trinidad & Tobago |
| Judge | Bereaux, J.A. |
| Judgment Date | 17 July 2018 |
| Neutral Citation | TT 2018 CA 34 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Docket Number | Civil Appeal No. S 325 of 2014 |
| Date | 17 July 2018 |
IN THE COURT OF APPEAL
N. Bereaux, J.A.
P. Moosai, J.A.
P. Rajkumar, J.A.
Civil Appeal No. S 325 of 2014
R. Martineau SC, A. Ramsaran, S. Julien for the appellants
R.L. Maharaj SC, K. Walesby, N. Badal holding for V. Maharaj for the respondents
Judicial Review - Appeal against decision granting reliefs sought in judicial review application — Review of decision not to promote officers — Whether acting appointments were permanent — Whether trial judge erred in making his findings.
Delivered by Bereaux, J.A.
This is an appeal from the decision of the High Court in which the judge granted the reliefs sought by the respondents in their judicial review application. The thirty-eight (38) respondents are all fire officers in the second division of the Fire Service of Trinidad and Tobago. They were granted permission to file for judicial review in respect of their non-promotion to certain posts in the fire service. The Commission made promotions to the ranks of fire sub-officer and fire sub-station officer in August 2010. The thirty-eight (38) respondents were not among them. The promotions were made on the basis of scores attained by fire officers under a new points system, devised under regulation 158(3) of the Public Service Commission Regulations. The judge granted various reliefs sought by the respondents, although, instead of the order of mandamus sought to compel the appellants to promote the respondents, the judge granted an order that the matter of the respondents' promotion be remitted for consideration.
It is convenient to refer to the respondents as the claimants for the purposes of this appeal. I shall refer to the Public Service Commission Regulations by their full name or as ‘the Regulations’.
Under the Fire Service Act Chap. 35:50 the fire service is divided into two divisions, the first and second division. The claimants are all second division officers. The second division consists of the following ranks:
Fire Equipment Supervisor (Grade 4)
Fire Station Officer (Grade 4)
Fire Sub-Station Officer (Grade 3)
Fire Sub-Officer (Grade 2)
Firefighter (Grade 1)
Apprentice Firefighter (Range 13)
There appear to be some differences in the titles of the posts of “Firefighter” and “Apprentice Firefighter” in the Third Schedule as opposed to elsewhere in the Fire Service Act. However, these differences are not material to this appeal.
The first appellant has the delegated power to, inter alia, appoint persons on promotion to offices in the second division of the Fire Service which are below the rank of fire station officer and to confirm the appointment of fire officers to such offices. On 30 th August 2010, the first appellant by fire service order #23 of 2010 made sixty-eight (68) promotions to the rank of fire sub-officer and fifty—four (54) promotions to the rank of fire sub-station officer, with effect from 30 th August 2010. None of the claimants was among them.
The promotions were made pursuant to the new points system introduced by the appellants. The new points system was introduced by fire service order # 36 of 2009. It sought to incorporate the provisions of regulation 158(3) of the Regulations. Regulation 158(3) provides that the Commission, in considering the eligibility of a fire officer for promotion, shall take into account:
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(a) his general fitness
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(b) any special qualifications
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(c) any special courses of training that he may have undergone (whether at the expense of Government or otherwise)
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(d) the evaluation of the officer's performance as reflected in his performance appraisal report
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(e) any letters of commendation or special report in respect of special work done by the fire officer
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(f) the duties to be performed in the office of which the fire officer has experience
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(g) demonstrated skills and ability relevant to the office
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(h) any specific recommendation by the Permanent Secretary or Chief Fire Officer for the filling of the particular office
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(i) any previous, relevant employment of his in the service, the public service, or elsewhere
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(j) any special report for which the Commission may call
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(k) his devotion to duty.
The claimants seek the promotion of some fifteen (15) officers to the post of fire sub-officer and nineteen (19) officers to the post of fire sub-station officer. They contend that the new points system is irrational and that its introduction was contrary to the principles of procedural fairness because they were not, or their association was not, consulted before implementation. They also contend that the failure to treat the respective fifteen (15) and nineteen (19) officers as having been promoted to the offices of fire sub-officer and fire sub-station officer, was illegal because, in law, they had been appointed to the higher office. They make a number of other contentions which are quite diverse. It is, no doubt, for this reason, that they have in their joint affidavit divided themselves into nine groups, each with specific claims. Some of the respondents belong to more than one group.
An excessive number of affidavits were filed in this matter. I have read and considered them all. I shall refer only to those which require discussion.
In their joint affidavit, which is quite long, the claimants have categorised their claims into nine groups and have deposed to their complaints as groups with each deponent personalising their particular complaint where necessary. I have summarised their evidence in relation to each group, as follows.
There are twenty-nine claimants in the first group, seven in the second group and three in the eighth group. These claimants complain that they were appointed to act in the next senior position from their substantive posts. They spent two years acting in that post and they were by-passed for promotion in 2010. They were not all appointed to act at the same time but all of the members of these groups were appointed “until further notice” at varying times between April 2008 and August 2009. One member however, Kenneth Byer, admits to being appointed to act in the office of fire sub-officer from 16 th June 2008 to 16 th December 2008. He cannot succeed on this issue. His acting appointment was temporary and came to an end on the date specified for its conclusion (16 th December 2008). The common complaint of the rest of the members of this group is that, by being appointed until further notice, they were appointed to act for an unspecified period and as such their appointments were for an indeterminate period. They say that they were not informed that the appointments were for fixed periods. They therefore understood their appointments to have been for an indeterminate period. The effect of being appointed “until further notice” was that they were permanently appointed to the higher substantive office and that their acting appointments were appointments that could only be terminated in accordance with the provisions of regulation 50 of the Public Service Commission Regulations. They further understood, from their acting appointments, that the first appellant was telling them that they had come top of a selection process applying the regulation 158 criteria. They say that, given that representation, they had a legitimate expectation that they would be preferred for promotion to the substantive role.
The third group of officers consisting of applicants numbers 3, 4, 6, 20, 22, 34, 36 and 38 say that they were passed over for promotion despite the provision in regulation 160 of the Public Service Commission Regulations that they be informed of that fact and of the reasons for being by-passed. They were not informed and were not given an opportunity to make representations.
They say that they sent letters complaining that they were not informed of their being by-passed and the reasons for it. Only three of them received acknowledgments but got no substantive response. In effect therefore all of the claimants in this group contend that they got no substantive response as to why they were not informed of their being by-passed and as to why they were bypassed in the first place. They say that included in the list of promotions were officers who had served in the same office for a shorter period than they had served. Accordingly they met the criteria under regulation 160(1)(b)(i) of the Public Service Commission Regulations so as to require the first appellant to advise them, with reasons, of their omission from the list. Further, all of them (except for applicant number four (4), Billy Martin) had been acting in the more senior office for more than 6 months, and so also met the criteria under regulation 160(1)(b)(iii).
The common complaint of both these groups is that they allegedly achieved the same score as the least scoring promoted officer but were not promoted. The fourth group consists of two claimants, numbers one and twenty—five. They complain that despite having received the same points as the least scoring promoted officer, they were not promoted. They say that the reason they were not promoted was because the promoted candidates had greater experience. They say that they both had acted in the vacant office since 2008 and both achieved nine (9) points out of ten (10) under the heading “Relevant and Relative Experience”. The list of officers promoted ahead of them included officers who had less experience and officers who had not acted in the vacant office before promotion.
The fifth group consists of seven (7) officers; applicants numbers two (2), three (3), five (5), eight (8), twenty-two (22), thirty-four (34) and thirty-eight (38), who say...
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